Court-imposed sanctions ... how do I get a refund?
COVID has certainly made for an unprecedented situation for lawyers, as well as for our Judges who try to maintain a semblance of order amidst overwhelming disorder that COVID has imposed. Court proceedings have always been about inperson proceedings where we are able to personally confront opposing parties , their witnesses, and sometimes a judge. Rules of practice never envisioned “Zoom” or its myriad of side-effects, which facilitate attorneys talking over judges or recording attorney facial expressions of disdain and discomfort when the attorney thinks he is in the privacy of his own home. Although it has been unintentional, I plead guilty to both.
More seriously, I wonder if COVID has anesthetized our state and federal judges, at all levels, when it has come to their handling of Trump initiated election cases. To date, the fifty or so cases filed in eight states have been dismissed with the Supreme Court deciding not to take up a review of the Pennsylvania Supreme Court’s election decision. So, we are at an end…. Correct ? Wrong. New filings continue unabated.
I don’t understand the kid glove treatment. My experience with judges has shown them to be impatient and zealous, maybe even irascible, in terms of not wanting to waste their time, insisting that litigators get to the point. This is a good thing. However, when it comes to the recent spate of election cases, judges seem to have bent over backwards to mollify challengers who pled fraud in their complaints and then matter of factly acknowledged that there was none.
The fact is, there is more involved to bringing a lawsuit than being able to come up with the filing fee (although Trumpeters’ apparently failed that test in one case). Applicable rules of practice require that lawyers who bring lawsuits have a reasonable belief as to the validity of the litigation they are bringing. The rules and statute provide for liability when it comes to those parties and their lawyers who bring frivolous litigation.
It has long been clear, before and after his ascendancy to public office that Trump knows little and could care less when it comes to initiating litigation. However, what about those lawyers and their clients? Some lawyers filed complaints, claiming to represent a party who disavowed ever agreeing to their representation. Other lawyers alleged fraud in pleadings and then in open court admitted that there was none. This did not happen once. It happened repeatedly, in Pennsylvania and throughout the country, thankfully with uniform and predictable results coming from judges who were all over the political spectrum.
Courts have inherent power to sanction parties for frivolous conduct. There have been some blistering opinions. However, as of yet, no one has been sanctioned. Given my past experience, my wife asked me why. As someone who has been sanctioned in the past, I feel discriminated against. Yes. I have been threatened with sanctions from a Chicago federal judge for such a thing as “being a Philadelphia lawyer”. I’ve also been sanctioned for of all things refusing to testify against my own client. Looking back, my favorite one involved being threatened with jail if a client, not within a Pennsylvania county court’s jurisdiction, did not pay money into the court prior to answering a civil complaint.
I used to really worry and lose sleep about being sanctioned. Then I had a discussion with a friend, the late great, M. Mark Mendel, Esq. His telling me of his childhood experience as a Holocaust camp survivor, gave me a better perspective. Things could be a great deal worse. He also told me a story about repeatedly being sanctioned during a court argument with opposing counsel. It went something like this. First, he was warned about being hostile to opposing counsel . However, he did it again and was fined $300. In short order he persisted with the alleged misbehavior and was again fined $300. He then approached the bench and pulled out a hefty roll of cash, in the thousands of dollars, handed it to the judge and asked him to run a tab for him.
The kind of misbehavior attendant to these election cases far surpasses what happened in the Mendel story or anything I’ve done. The Trumpsters, the big guy included, exhibit a fundamental disregard for the law and our system of rules. Yet they go on and on with case filings and ridiculous arguments. Judges exhibit deference to and acceptance of this misbehavior, by not invoking sanctions.
After 40 years of practice in courts all over the country, I don’t get it. I pray for the anesthesia to wear off and have judges, as I’ve come to know them, return in their full force. Otherwise, I wonder if its too late for me to apply somewhere for a refund.